Debt Recovery Tribunal Has No Power To Restrain Debtor's Right Under Article 21 To Travel Abroad – Bombay High Court
The Bombay High Court has held that Debt Recovery Tribunal has no power under law to restrain debtor's right guaranteed under Article 21 of the Constitution to travel abroad.
A Division Bench comprising of Justice Amit Borkar and Justice A.S. Chandurkar after considering the relevant provisions of Recovery of Debts Due To Banks and Financial Institutions Act, 1993 observed –
"On careful consideration of the language of Sub Section 12, 13(A), 17 and 18 of Section 19, we are of the considered view that the Tribunal is not conferred with specific power to restrain a person from leaving the country."
Counsel Mr. Akshay Naik and Counsel Mr. D.V. Chauhan appeared for the Petitioner while Counsel Mr. A.T. Purohit appeared for Respondent – Bank.
In this case, the Petitioner was the personal guarantor of a private limited company engaged in electricity and power generation. To establish the power plant, a consortium was formed to finance the project including Respondent No. 1 – Bank.
Thereafter, proceedings under IBC were initiated, which are pending before NCLT, Mumbai in relation to Respondent No. 2 – Company and the same is under liquidation. This was followed by the filing of an original application before DRT, Nagpur for recovery of amount against the Petitioner and others.
The Bank had sought interim relief against the Petitioner from travelling abroad and for impounding the passport of the Petitioner. The DRT had passed an order restraining the Petitioner from travelling abroad.
Aggrieved, the Petitioner approached the High Court challenging the order of DRT refusing to grant permission to the Petitioner to travel abroad for a limited time to attend his sister-in-law's marriage in Turkey.
The issues dealt with by the Court were –
i) The interpretation of Article 21 of the Constitution of India as to whether the expression "personal liberty" occurring in the said Article includes the right to travel abroad; and
ii) Whether the refusal to grant permission to travel abroad results in the infringement of Article 21 of the Constitution of India.
The Court noted that the expression "personal liberty" includes the right of a citizen to travel abroad and return to the home country without any impediment, direct or indirect.
In this context, the Bench added –
"The expression "personal liberty" has not been used in the restricted sense of freedom from arrest and detention but has been used in a much wider sense. This right emanates from the freedom of a person. The right to travel abroad and return to the country without impediment, direct or indirect, is contained in the expression "personal liberty" occurring in Article 21 of the Constitution."
The Court observed that if the right to travel is a part of personal liberty, the Petitioner cannot be deprived of his right except according to the procedure established by law.
"The right to travel abroad is right distinct and separate from the right of freedom of movement in a foreign country. The right to travel abroad by its necessary implications means the right to leave the home country and visit a foreign country. The right to travel abroad has been spelt out from the expression "personal liberty" in Article 21 of the Constitution," the Bench opined.
The Court also held in the absence of a specific provision conferred on the Debt Recovery Tribunal by statute, the Debt Recovery Tribunal has no power to restrain a citizen from travelling abroad, particularly when the said right has been recognized as a facet of Article 21 of the Constitution of India.
The Bench held that the provision under the Recovery of Debts Due To Banks and Financial Institutions Act, 1993, as they stand, do not even impliedly confer such powers on the Debt Recovery Tribunal to restrain a person from travelling abroad.
The Court further also emphasized that it is not unmindful of the necessity of regulating the recovery of public money.
Accordingly, the Court set aside and quashed the impugned order of DRT and allowed the Petitioner to travel abroad.